KENCHAPPA Vs. C.M. SEETHARAMAIAH

JUDGEMENT

(1.) Heard learned advocates.

(2.) The short controversy involved in this C.R.P. centres around the question as to whether the respondent-plaintiff was justified in applying under the provisions of Order 41 Rule 27, CPC, for production of additional evidence at the appellate stage. Undoubtedly, the application was made at a belated stage after the suit had been dismissed by the Trial Court and the defendants who are the present petitioners objected to the introduction in evidence of any new material unless the respondent satisfied the Court that this material had not come to his knowledge earlier and that despite due diligence, it had not been possible for him to produce it at the stage of the trial. The learned Trial Judge has hardly dealt with this aspect of the matter because, he has discussed the dispute briefly and he has held that there do exist certain discrepancies as also ambiguity in the evidence particularly with regard to the situation and location of the suit properties including the disputed trees and that the Court cannot effectively decide the case without the additional material. The learned Judge has therefore, remanded the matter to the Trial Court for the introduction in evidence of this additional material which is essentially in the nature of the documents being certified copies of records etc. and has given the present petitioners the equal opportunity of leading evidence in rebuttal. It is a partial remand and not one whereby the whole of the trial will have to be re-conducted. The petitioner's learned advocate submitted that the remand was unnecessary and uncalled for and he has basically submitted that this is not a suo moto action on the part of the Trial Court, but it is a case where the action has emanated on the basis of an application from the respondent and that therefore, having regard to the provisions of Order 41 Rule 27 (aa), that the respondent having failed to explain the delay and not even having adduced any material before the Court to justify the non-production of the material despite due diligence at an earlier point of time, that the whole of the order is liable to be quashed.

(3.) The respondent's learned advocate submits that in the application filed, an averment has been made that despite due diligence, the certified copies were not available earlier and that therefore, the order passed is fully justified. There is virtually no satisfactory explanation in the application before the Appellate Court and under normal circumstances, it ought to have been rejected. The only aspect of the matter which this Court needs to take special note of is that situations do arise where due to defaults on the part of the litigants, but more importantly those conducting the litigation, evidence on material aspects is sometimes not adduced as a result of which, the case virtually goes by default. It is in this background, that, with the object of doing complete justice, sub-clause (b) of Order 41 Rule 27 prescribes that additional evidence may be permitted at the appellate stage, if the Court requires such material to enable it to pronounce judgment or in other words, to effective decide the controversy. In the course of the hearing before the appeal Court, this aspect of the matter surfaced and it is precisely on this ground that the learned Judge has allowed the application. It is within the inherent, jurisdiction and discretion of the Appellate Court to briefly examine the controversy and to direct the production of additional evidence or to permit the production of additional evidence if it is very necessary for a fair decision of their case. A case which has gone by default, presents a very damaging situation because results in manifest injustice to the litigant concerned, but more importantly, could also] lead to further litigation. It is both these situations which require to be remedied and, rectified and it is for this reason that the power has been invested with the Appeal Court. It is a power which is required to be sparingly utilised and only in the most genuine of cases and this power is not to be used as a licence permit in discriminate re-opening of proceedings.